Mumia Abu-Jamal Faces US Supreme Court as New Book and Film Expose Injustice

By Hans Bennett

(Abu-Jamal-News.com)

On Monday, Oct.6, in a ruling unrelated to death-row journalist Mumia Abu-Jamal's upcoming appeal of the recent Third Circuit decision denying a new guilt-phase trial, the US Supreme Court rejected his Post Conviction Relief Act (PCRA) appeal, which was asking the courts to hear newly discovered testimony from Kenneth Pate and Yvette Williams (read the affidavits here). The appeal had been filed in July, after it was rejected by the PA Supreme Court in Feb, 2008, and in 2005 by Philadelphia Judge Pamela Dembe.

Upset by Monday's news, Dr. Suzanne Ross, Co-Chair of The NYC Free Mumia Coalition argued: "The courts, from Judge Albert Sabo's outrageously biased rulings and court decorum; to Pamela Dembe's ridiculous rulings, including her disregard of the significance of Sabo's infamous 'I'm going to help them fry the Nigger' remark; to the PA Supreme Court's rubber stamping of Sabo's and Dembe's rulings; to Judge William Yohn's refusal to examine the question of innocence, to the Third Circuit's 'topsy turvy' violations of their own precedents in considering the Batson issue so that they could deny Abu-Jamal the trial he is entitled to, have all shown a callous disregard for the life of a man who is obviously innocent, and have done everything in their power to assure that Mumia Abu-Jamal will never see the light of day from other than the twisted prism of a prison. This last decision is yet another outrageous chapter in a 27 year history of a conspiracy to imprison, kill, and silence Mumia Abu-Jamal."

With the court's PCRA rejection, Abu-Jamal's upcoming appeal to the US Supreme Court of the Third Circuit decision (the filing of this appeal is due by Oct. 20 unless a 60 day extension is requested) is now more important than ever, because this is now his last chance for a new guilt-phase trial. Fortunately, this crucial moment for Abu-Jamal coincides with two new media projects that expose injustice in his case that extends well beyond the narrow issues being considered by the courts: the British film In Prison My Whole Life and the book The Framing of Mumia Abu-Jamal, by J. Patrick O'Connor.

Both projects merit extensive coverage from the mainstream media, and are being utilized as tools by Abu-Jamal's supporters for both education and fighting what they see as a long history of mainstream media bias against Abu-Jamal. Supporters are currently organizing for a major demonstration in Philadelphia on December 6, organized in solidarity with other actions around the world.

The Framing of Mumia Abu-Jamal, by J. Patrick O'Connor

Acclaimed historian Howard Zinn has written that "J. Patrick O’Connor’s new book, The Framing of Mumia Abu-Jamal is based on a meticulous review of 12,000 pages of court transcripts, legal briefs, police records and an exhaustive examination of the constitutional violations perpetrated by America's criminal 'justice' system. His evidence makes a powerful case that Mumia Abu-Jamal should be granted a new trial, and having been cruelly kept on death row for 26 years, he should be immediately freed.”

In Framing, O’Connor criticizes the media, who he says “bought into the prosecution’s story line early on and has never been able to see this case for what it is: a framing of an innocent and peace loving man.” As explained in a recent interview, O'Connor argues that the actual shooter was a man named Kenneth Freeman, who was Billy Cook's business partner and who O'Connor argues was a passenger in Cook's car when it was pulled over by Officer Daniel Faulkner the morning of Dec. 9, 1981. Freeman was mysteriously found dead in a Northeast lot (reportedly naked, gagged, hand-cuffed, and with a drug needle in his arm) the day after the infamous May 13, 1985 police bombing of MOVE, leading O'Connor to conclude that "the timing and modus operandi of the abduction and killing alone suggest an extreme act of police vengeance."

Despite the importance of Framing, and a timely NY Times article that spotlighted the book's release in May, the mainstream media has virtually ignored O'Connor's book. Supporters of Abu-Jamal are fighting back against this media blackout, and on October 3, author J. Patrick O'Connor began a week-long book tour in the SF Bay Area, which followed his tour of New York City and Philadelphia in June. Click here for a compilation of radio shows, interviews with, and articles by & about O'Connor--including this video interview at Philadelphia City Hall on the day of the book's release (WATCH PARTS 1, 2, and 3).

The Sundance Channel Acquires New British Film About Mumia

Scheduled to premiere on The Sundance Channel on December 8, 2008, the new film, titled In Prison My Whole Life has been officially endorsed by Amnesty International, who in 2000 published a major report calling for a new trial. Amnesty UK Director Kate Allen said: "It's shocking that the US justice system has repeatedly failed to address the appalling violation of Mumia Abu-Jamal's fundamental fair trial rights....We hope that the film's viewers will back our call for a fair retrial for Mumia Abu-Jamal--and also support our work opposing the death penalty in the US and around the world."

In Prison character and filmmaker, William Francome was born on the night of Mumia’s 1981 arrest. Responding to the Sundance acquisition, he said: "Mumia's case and the issues surrounding it are still highly important and need to be analyzed...It is so important that a trusted high quality broadcaster like Sundance has taken up the film, putting it at the fingertips of millions of Americans."

On October 10, there is a special press conference, reception, and screening of In Prison at Theatre Pathe Vaise in Lyon, France, featuring the former French First Lady, Madame Daniele Mitterrand, producers Colin Firth & Livia Giuggioli-Firth, Abu-Jamal's lead attorney Robert R. Bryan, representatives of Amnesty International, and a message from Mumia to be read to the audience. In Prison has already been shown at many prestigious film festivals including The Times BFI 51st London Film Festival and Rome's International Film Festival in 2007, The Sundance Film Festival, in January, 2008, and this September at NYC's Urbanworld Film Festival, and at the CR10 prison abolitionist conference in Oakland, CA.

Mumia’s brother Billy Cook was at the scene on Dec. 9, 1981, after Officer Faulkner pulled Cook’s VW car over. Interviewed in the film, Cook denies the accusation that he struck Faulkner in the face, from which he allegedly instigated the documented beating by Faulkner. Cook shows In Prison's interviewers the scars from the beating, which are still on his head today. "They arrested me for assaulting him, but I never laid a hand on him. I was only trying to protect myself," says Cook, who also reports that before he was beaten bloody with the police flashlight, Faulkner "was kind of vulgar and nasty. And if I remember correctly he threw a slur in... 'Nigger' get back in the car."

In Prison features the first interview with press photographer Pedro Polakoff, along with German author, Dr. Michael Schiffmann (University of Heidelberg), who discovered Polakoff's photos (never seen by the 1982 jury) and featured them in his new German book Race Against Death, published in Fall, 2006. William Francome argues that the photos "were purposefully ignored by the prosecution and the DA’s Office", because the DA knew that the photographs "could have done their case some damage in court." (For more on the photos, go to Journalists for Mumia's website: Abu-Jamal-News.com)

Appealing The Third Circuit Ruling to The US Supreme Court

On July 22, the Third Circuit Court ruled against Mumia's en banc appeal requesting that the entire court hear his appeal, instead of just the three-judge panel of Thomas Ambro, Anthony Scirica, and Robert Cowen, who previously ruled against a new guilt-phase trial on March 27, 2008. Ruling against three different appeal issues, the court refused to grant either a new guilt-phase trial or a preliminary hearing that could have led to a new guilt-phase trial for Mumia. However, on the issue of racist jury selection, also known as the Batson claim, the three judge panel of split 2-1, with Ambro dissenting.

The 1986 Batson v. Kentucky ruling established the right to a new trial if jurors were excluded on the basis of race. At the 1982 trial Prosecutor McGill used 10 of his 15 peremptory strikes to remove otherwise acceptable black jurors, yet the court ruled that there was not even the appearance of discrimination. In his dissenting opinion, Ambro wrote that the denial of a preliminary Batson hearing “goes against the grain of our prior actions…I see no reason why we should not afford Abu-Jamal the courtesy of our precedents.”

Mumia will be filing an appeal of this ruling with the US Supreme Court by the deadline of Oct. 20, unless he applies for a 60 day extension. The District Attorney has the same Oct. 20 deadline to appeal the Third Circuit ruling regarding the 'overturning' of the death sentence, if they choose to do so.

On March 27, the three-judge panel unanimously affirmed Federal District Court Judge William Yohn’s 2001 decision overturning the death sentence. Citing the 1988 Mills v. Maryland precedent, Yohn had ruled that sentencing forms used by jurors and Judge Sabo’s instructions to the jury were potentially confusing, and jurors could have mistakenly believed that they had to unanimously agree on any mitigating circumstances in order to consider them as weighing against a death sentence.

Now, if the DA wants to re-instate the death sentence, the DA must call for a new penalty-phase jury trial where new evidence of Mumia’s innocence can be presented. However, the jury can only choose between a sentence of life in prison without parole or a death sentence.

Or, the DA can appeal this ruling to the US Supreme Court by the deadline of Oct. 20. The DA has not stated whether or not it will: (1) appeal this to the US Supreme Court, or (2) accept the Third Circuit ruling and either request a new sentencing trial or accept life in prison without the chance of parole.

US Supreme Court Rejects Mumia Abu-Jamal's PCRA Appeal

On Monday, October 6 (in a ruling unrelated to the above-mentioned appeal of the 3rd Circuit ruling), the US Supreme Court rejected Mumia’s Post Conviction Relief Act (PCRA) appeal, which was asking the courts to hear newly discovered testimony from Kenneth Pate and Yvette Williams (read the affidavits here). The appeal had been filed in July, after it was rejected by the PA Supreme Court in Feb, 2008, and in 2005 by Philadelphia Judge Pamela Dembe.

Philadelphia journalist Dave Lindorff is the author of Killing Time, an independent investigation into the Abu-Jamal case. Responding on Monday to the US Supreme Court ruling he said: "One of the travesties that is part of American death penalty jurisprudence, and that contributes to the inescapable conclusion that it can never be fair or foolproof, is that the bar for getting a new hearing based upon new evidence is set almost impossibly high. So for example, even though we have in these two affidavits evidence that a key witness at trial to an alleged confession had been pressured or lured into lying on the stand, and that a second alleged eye-witness had been pressured and induced into claiming she was a witness when she actually wasn't one, the US Supreme Court rules that it will not even review the matter or order a lower court to do so. And so it is possible that Mumia Abu-Jamal, a man who could in fact be innocent of murder, will either die or be left to rot in jail for the rest of his life while he could be the victim of police witness tampering and prosecutorial misconduct."

Another Philadelphia journalist was dismayed by Monday's ruling, and hopes it is not an indication of how the court will respond to the upcoming, separate appeal of the 3rd Circuit ruling. Having covered this story since 1981, Temple University professor and Philadelphia Tribune columnist Linn Washington, Jr. argues that "the Williams revelation by itself at least deserves a formal hearing...as does the jury selection discrimination issue. However, state and federal courts continue with the pattern in the Abu-Jamal case of circling the wagons to shut-out any evidence exposing the major flaws of the 1982 trial and that jury's guilty verdict."

Let's take a closer look at these two rejected affidavits that shed light on the broader issue of fabricated evidence used to convict Mumia Abu-Jamal.

KENNETH PATE'S AFFIDAVIT AND THE FAKE 'HOSPITAL CONFESSION'

Kenneth Pate is the step-brother of hospital security guard Priscilla Durham, who testified at the 1982 trial to hearing Abu-Jamal confess at the hospital, to shooting Officer Daniel Faulkner. Pate now states in an April 18, 2003 affidavit that Durham confided to him during a telephone conversation "around the end of 1983 or the beginning of 1984" that she had actually lied about hearing the alleged hospital confession.

Pate states that Durham told him on the telephone that "Mumia was all bloody and the police were interfering with his treatment, saying 'let him die.' Priscilla said that the police told her that she was part of the 'brotherhood' of police since she was a security guard and that she had to stick with them and say that she heard Mumia say that he killed the police officer, when they brought Mumia in on a stretcher.''

Only two of these five witnesses were called by the DA: Priscilla Durham and Gary Bell (Faulkner's partner and "best friend").

Priscilla Durham and Gary Bell

Durham testified in 1982, and added for the very first time (not reported to the police on Feb.9), that she had reported the confession to her supervisor the next day, making a hand-written report. Neither her supervisor, nor the alleged handwritten statement were presented in court.

Instead, the DA sent an officer to the hospital, returning with a suspicious typed version. Sabo accepted the unsigned and unauthenticated paper despite both Durham's disavowal (because it was not hand-written), and the defense's protest that authorship and authenticity were unproven.

Gary Bell testified that his two month memory lapse resulted from him being so upset over the death of Faulkner, that he forgot to report it to police.

Gary Wakshul: 'the negro male made no comment.'

Police Officer Gary Wakshul was not a prosecution witness, and on the final day of testimony in 1982, Mumia's lawyer discovered Wakshul's statement from Dec. 9, 1981 (Mumia's supporters cite this late discovery as another example of incompetent representation--to which defense attorney Anthony Jackson testified about at the 1995 PCRA hearings).

After riding with Abu-Jamal to the hospital and guarding him until his treatment, Wakshul reported: "the negro male made no comment."

When the defense immediately sought to call Wakshul as a witness, the DA reported that he was on vacation. On grounds that it was too late in the trial, Sabo denied the defense request to locate him for testimony.

Subsequently, the jury never heard from Wakshul or about his contradictory written report. When an outraged Abu-Jamal protested, Judge Sabo cruelly declared to him: "You and your attorney goofed."

At the 1995 PCRA Hearings, Wakshul testified that both his contradictory Dec. 9 "the negro male made no comment" report and the two month delay were simply bad mistakes. He repeated his earlier February 11, 1982 statement given to the police IAB investigator that he "didn't realize it had any importance until that day." Wakshul also testified to being home for his 1982 vacation—in accordance with explicit instructions to stay in town for the trial so that he could testify if called.

Mysteriously, just days before his PCRA testimony, Wakshul was savagely beaten by undercover police officers in front of a Judge in the Common Pleas Courtroom, where Wakshul worked as a court crier.The two attackers were later suspended without pay, as punishment. With the motive still unexplained, the beating was possibly used to intimidate Wakshul into maintaining his "confession" story at the PCRA hearings.

Regarding the alleged confession, Amnesty International concluded: "The likelihood of two police officers and a security guard forgetting or neglecting to report the confession of a suspect in the killing of another police officer for more than two months strains credulity."

YVETTE WILLIAMS' AFFIDAVIT AND CYNTHIA WHITE'S FALSE TESTIMONY

Yvette Williams' July 8, 2002 affidavit, is the just latest evidence discrediting the prosecution's star witness at the 1982 trial: Cynthia White.

Suspiciously, no official eyewitness even reported seeing White at the scene, and White is the only "witness" to report seeing alleged eyewitness Robert Chobert's taxi cab parked behind PO Faulkner's car.

Amnesty International documents that key DA witnesses Chobert (an arsonist on probation, driving his cab without a license) and White (a prostitute facing multiple charges) "altered their descriptions of what they saw, in ways that supported the prosecution's version of events."

Importantly, Williams' account of 1) White being coerced by police to give false testimony, and 2) Police seeking out even more false testimony, is strongly supported by the testimony of Veronica Jones (at the 1982 trial and the 1996 PCRA) and Pamela Jenkins (at the 1997 PCRA).

The New Affidavit

Yvette Williams declares: "I was in jail with Cynthia White in December of 1981 after Police Officer Daniel Faulkner was shot and killed. Cynthia ['Lucky'] White told me the police were making her lie and say she saw Mr. Jamal shoot Officer Faulkner when she really did not see who did it....Whenever she talked about testifying against Mumia Abu-Jamal, and how the police were making her lie, she was nervous and very excited and I could tell how scared she was from the way she was talking and crying."

Explaining why she is just now coming out with her affidavit, Williams says "I feel like I've almost had a nervous breakdown over keeping quiet about this all these years. I didn't say anything because I was afraid. I was afraid of the police. They're dangerous."

Pamela Jenkins' 1997 PCRA Testimony

At the 1997 PCRA hearing, former prostitute Pamela Jenkins testified that 1) Police tried pressuring her to falsely testify that she saw Abu-Jamal shoot Faulkner, and 2) In late 1981, Cynthia White (who Jenkins knew as a fellow police informant) told Jenkins that she was also being pressured to testify against Mumia, and that she was afraid for her life.

As part of a 1995 federal probe of Philadelphia police corruption, Officers Thomas F. Ryan and John D. Baird were convicted of paying Jenkins to falsely testify that she had bought drugs from a Temple University student named Arthur Colbert. Jenkins' 1995 testimony about Colbert and others she falsely testified against, helped to convict Ryan, Baird, and other officers and to dismiss several dozen drug convictions.

At the 1997 PCRA, Jenkins testified that this same Thomas F. Ryan was one of the officers who attempted to have her lie about Mumia!

The Attempts to Silence Veronica Jones

Veronica Jones (a former prostitute who was working at the scene) first told police that she had seen two men "jogging" away from the scene before police arrived. Then, as a defense witness at the 1982 trial, Jones denied making the statement, but started to describe a pre-trial visit from police, where "They were getting on me telling me I was in the area and I seen Mumia, you know, do it..They were trying to get me to say something that the other girl [Cynthia White] said. I couldn't do that." Jones then explicitly testified that police offered to let her and White "work the area if we tell them" what they wanted to hear regarding Mumia's guilt.

The DA moved to block her account, calling her testimony "absolutely irrelevant." Judge Sabo agreed to block the line of questioning, strike the testimony, and then ordered the jury to disregard Jones' statement.

Later, at the 1996 PCRA, Jones testified that in 1982 she had been coerced by police to recant seeing the two men jogging away, but resisted police pressure to falsely testify that she saw Abu-Jamal shoot Faulkner.

Intimidation of Jones continued at the PCRA. Before she testified, Judge Sabo threatened her with 5-10 yrs imprisonment for admitting perjury. After testifying, he allowed NJ police to handcuff and arrest her for an outstanding arrest warrant on charges of writing a bad check.

Outraged by Jones' treatment, even the normally 'anti-Mumia' Philadelphia Daily News reported that: "Such heavy-handed tactics can only confirm suspicions that the court is incapable of giving Abu-Jamal a fair hearing. Sabo has long since abandoned any pretense of fairness." (Read more about Jones, and watch a new video-interview with her)

Organizing for Dec. 9 and Beyond

German author and co-founder of Journalists for Mumia, Michael Schiffmann responded to Monday's ruling from his home in Heidelberg. Emphasizing that these two affidavits are important enough to merit a PCRA hearing, Schiffmann says "there's just one point I want to stress. Right-wing and FOP commentators will claim that the Williams and Pate affidavits were hearsay anyway. But this isn't true. If someone reports a crime commited by him/herself to me, that's called a statement 'against one's own interest,' and if I report it to the police or testify to it in court, my report or testimony is admissible. Of course, both statements are highly relevant: White and Durham were main pillars of the prosecution. If they admitted to other people that they lied in court, the testimony of these other people should be heard."

"Now we will have to redouble our efforts to ensure that the US Supreme Court grants the petition for writ of certiorari Mumia's lawyer will be filing later this month or in December, if given a 60 day extension," says Schiffmann.

Please visit FreeMumia.com for the latest updates on organizing for December 6 and be sure to download (and print out in your community) our two new info flyers just completed: 1) A condensed legal update based on this article, and 2) A flyer summarizing the key points from The Framing of Mumia Abu-Jamal, and promoting the West Coast Book Tour.

--Hans Bennett is an independent multi-media journalist (insubordination.blogspot.com) and co-founder of Journalists for Mumia (Abu-Jamal-News.com), whose new video series documenting the movement in Philadelphia to free Mumia and all political prisoners is viewable here.